Two U.S. Catholic bishops have recently expressed urgent concern for freedom of conscience in the public sphere. They are arguing for legal protection for people whose jobs require them to provide service to people whose ethics they disagree with. The services in question are medical services for those who choose to have abortions or sterilizations and the services connected with civil marriage to same-gender couples.
Are the bishops right? Should people employed to serve the public be protected by law in refusing to provide services to those they disagree with?
Examples from outside the emotionally charged areas of abortion and same-sex civil marriage may make the question clearer. Recently in local news, Muslim cab drivers were refusing to transport airport fares carrying duty-free alcohol or any passenger accompanied by a dog. The cab drivers’ refusal was based on religious beliefs and ethics. As it turned out, they were not given legal protection; they were threatened with suspension of their licenses. When another religious tradition’s ethics were the subject of conflict, did the Catholic bishops argue that the law should protect the cab drivers’ right to refuse service?
Archbishop Nienstedt on Abortion Services
Archbishop, John C. Nienstedt, in his April 2 column in the Catholic Spirit says he intended to reflect on the Easter triduum, but because of “a grave threat to our country’s well-being through the infringement of our right to exercise a freedom of conscience,” he was compelled to talk about a Health and Human Services (HHS) rule instead. In doing so, he uses phrases such as: government coming “between an individual citizen and God;” “first step in moving our nation from democracy to despotism,” “slippery slope to moral chaos.”
The intemperate language is aimed at the Obama administration and a move it made to hold hearings on a Health and Human Services agency rule dealing with the right to refuse abortion and sterilization procedures. What the Archbishop did not explain is that the HHS rule he is defending as crucial to our freedoms has been in effect only since January 20, 2009, and has nothing to do with forcing Catholics to assist in abortion or sterilization procedures.
The HHS rule in question was promulgated in the last days of the Bush administration and took effect in January 2009. It was intended to implement a law that has been in effect since the Roe v. Wade decision in 1973. That law, 42 USC Section 300 a-7, provides that health care entities receiving federal funds may not discriminate against either providers of abortion services or those who refuse to provide abortion services on the basis of “religious belief or moral conviction.” Catholic health care facilities are not forced to provide abortions or sterilizations. Catholic physicians are not forced to provide those services. Revising or rescinding the 2009 HHS rule would not repeal the 1973 law, so it is hard to see this as “a grave threat to our country’s well-being” or a move from “democracy to despotism.”
I do not know the results of the hearings or how his administration intends to re-write the rule, but President Obama, in his address at Notre Dame on May 17, 2009, made this conciliatory appeal:
Let’s honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women.
This does not look like a step down “the slippery slope to moral chaos.” Is the Archbishop’s vehement language an effort to protect individual conscience or is it an effort to frighten people in order to criminalize abortion?
There may be political reasons to do so, but what is the logic of providing ”conscience clauses” for health care providers? Aren’t health care workers employed in a public facility providing abortion and sterilization procedures in the same position as the Muslim cab drivers? There are eleven abortion providers in the state of Minnesota, according to the Guttmacher Institute’s website. Why work for one if you are conscientiously opposed to providing abortion services? We would like to hear from anyone who has experienced problems of conscience in providing health care.
Bishop McCormack on Same-Sex Marriage
Another U.S. bishop’s concern is service providers’ freedom of conscience in same-sex civil marriages. Bishop John B. McCormack of Manchester urged the New Hampshire Governor to veto a same-sex marriage bill then making its way through the legislative process. He is quoted in the Manchester Union Leader of June 6, giving these reasons for his position:
When a change of this momentous scope is proposed and there is not adequate time to not only look at all the implications of it, but also not to hear in depth from the people whom it will affect, then there are going to be serious problems. Short of preserving marriage as the union of one man and one woman, there must be adequate protections for churches, but also for individuals who have a genuine conscientious objection to participating in or assisting ceremonies of same sex couples.
We urge Governor Lynch to veto this legislation, if for no other reason than it leaves too many unanswered questions regarding protections for religious organizations and persons of conscience.
The bill has since been signed by Governor Lynch making same-sex marriage legal in New Hampshire.
Imagining a situation Bishop McCormack may be talking about, let’s say a county clerk has a religious conviction that same-gender sex is sinful. In handling the marriage application of two men or working for the marrying judge, he is “assisting ceremonies of same sex couples.” If he can’t rationalize his duty as a public employee in serving people who are legally requesting a service of him, then he will have a problem of conscience. I’d say he is in the same position as the Muslim cab driver. He must either reason his way to providing the service or find a job in which he can avoid contact with people he considers sinners. He is in the same position as a person who in the past was conscientiously opposed to serving blacks, Irish, Jews, foreigners, women, or any other marginalized group. There is no reason to legally protect him in refusing to fulfill the duties of his employment.
A Mix-Up of Moral Questions
These two Catholic leaders appealing for “the right to freedom of conscience” in relation to public law set me to thinking about what that right is and how it affects the common good. I think the bishops have mixed up two very different moral situations.
One situation is about being coerced by law against one’s conscience. But neither the federal law restricting the states from criminalizing abortion nor the state laws allowing same-sex marriage force anyone to have an abortion or to marry a same-gender person. Both laws allow a freedom; neither coerces a person to some act in violation of conscience. Each woman is free, with restrictions in the second and third trimesters, to terminate a pregnancy according to her own conscience; and each man or woman is free, with some restrictions, to marry whomever he or she chooses in conscience to marry. If a law required a woman to have amniocentesis and abort a fetus with health problems, for example, civil disobedience would be in order and the bishops would be right to campaign against it.
In the other situation a person must choose what employment conditions are consistent with his or her ethical code. No one is forced by law to work in a job that violates his or her conscience. Though some people have the luxury of avoiding repugnant conditions, the necessity of making a living can make a person quite tolerant of sinners around him. If a person believes his own moral rectitude is threatened by the choices of the people it is his duty to serve, he has the freedom to quit the job. This is the moral situation both bishops describe. In a pluralistic society with multiple ethical codes, is it reasonable to expect the law to protect each person’s right to refuse to serve people whose ethics they disagree with? I don’t think so.
The bishops erroneously speak as if the moral obligation in the second situation were the same as in the first. This might be a good question to test the bishops’ position: if the state criminalized abortion or homosexual sex, would prosecutors who did not believe in the justice of criminal penalties for either of those acts have the right to refuse to prosecute under a “conscience clause” provided for them? Would the bishops advocate for that conscience clause? Probably not. What they advocate is not about freedom of conscience at all. It is about coercing others to live by a Catholic ethical code
I do not doubt that both bishops sincerely think that their ethical view is the objectively “right” one and that the nation’s adopting their view would be for the common good.
The Common Good
This is the crucial question: who is to say what is for the common good? There are myriads of goods (values) and individuals have different priorities of goods. Since the conception of a good life and how people should relate to one another is deeply ingrained in a culture, each cultural group knows what is good for them. In pooling our views, we the people, all voices heard, decide what is for the common good in creating laws for ourselves. It’s a very messy process, one that often fails to include all voices. Nonetheless it is the ideal. No one group can decide what is good for the whole nation. Cooperation within the system of laws that we ourselves have made is the closest we can come to delivering the common good.
Whether the laws are just is always open to question. Time, public debate among citizens, and evolution in ethical thinking will tell how durable they are.
And what of the ethics of citizenship in a pluralistic nation? I think good citizenship calls for recognizing ourselves and our own ethical community as one of many individuals and communities, all with a stake in determining the common good. It calls for respect for the others’ freedom of conscience, a reluctance to force laws on people. It calls for recognition of ethical ambiguity and compassion for the way others view their choices. It calls for reasonableness and the careful use of language in public discourse All in all, a serious task for all of us.